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The Supreme Court’s detailed order on Justice Karnan reveals a lack of faith in its own procedures

09 July 2017

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Firstly, the Supreme Court’s original May 9 verdict did not disclose any reasons for Karnan’s conviction. It simply stated “detailed order to follow”. In scores of judgements, the Supreme Court has criticised exactly this type of judicial behaviour as being violative of the principles of natural justice. Justice Deepak Mishra (one of the judges on the bench that convicted Karnan), while heading a bench in January, passed an order censuring the use of the phrase “reasons to follow” by high court judges. The Supreme Court has now finally, after two months, disclosed its reasons for convicting Karnan. But the 80-page judgement is silent about why the court failed to pass a reasoned verdict in the first instance. By the Supreme Court’s own standards, the non-reasoned order of May 9 amounts to an abuse of judicial discretion and a violation of the principles of natural justice.

In-house procedure

Second, this suo-moto (on its own motion) contempt case under which Karnan was convicted subverts the mandatory “in-house procedure” established by the Supreme Court to deal with cases of judicial misconduct. The in-house procedure, formally adopted by the Supreme Court in December 1999, was framed as a mechanism to deal with allegations of misconduct against judges of the higher judiciary. Over the past two decades, the court has striven to uphold it through several rulings from the bench. For example, it was this procedure the then Chief Justice of India KG Balakrishnan followed in 2007 while looking into allegations of misappropriation of public funds against Justice Soumitra Sen. Similarly, in 2014, a Supreme Court bench of Justice JS Khehar and Justice Arun Mishra struck down the order of the chief justice of the Madhya Pradesh High Court for not following the in-house procedure in dealing with the misconduct of a sitting judge of that court. The Supreme Court termed the Madhya Pradesh chief justice’s departure from the in-house procedure as “usurpation of the investigative process assigned to the judicial committee under the in-house procedure”. It emphasised the mandatory nature of the procedure by stating that it was an “established means for inquiring into allegations levelled against a judge of a superior court”.

These stinging observations now have a hollow ring to them and ought to be treated as having been judicially retracted in light of the Supreme Court’s conduct in Karnan’s case. In its July 4 order, the Supreme Court headed by the very same Justice Khehar makes no mention of the in-house procedure and even writes movingly of the “need to set up [an] appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court requires corrective measures – other than impeachment”. What are we to make of this declaration, other than that it amounts to an implied overruling of the Supreme Court’s 2014 order through the peculiar device of judicial amnesia?

In going down the contempt route, the Supreme Court has squandered a valuable opportunity to develop its in-house procedure into a more durable and resilient mechanism to deal with judicial misconduct. What might have been a landmark case on the court’s in-house procedure, which could have set a precedent for judicial discipline, has instead ended up as an anodyne contempt case. By taking the contempt route, the court has indicated that it is exempt from even the rule of law of its own creation. Unfortunately, a precedent like this has a reliable tendency to trickle down to High Courts and affect their dealings vis-à-vis the subordinate judiciary.

Allegations ignored

Thirdly, the Supreme Court has not made even the most perfunctory of attempts to investigate Karnan’s allegations of casteism and corruption. A reading of Tuesday’s order shows that apart from shock and anger, these allegations have elicited little serious attention from the majority of the Supreme Court bench. If the narrative of the court is that the repeated allegations of corruption establish Karnan as a judge habituated to making irresponsible charges against his colleagues, then the corollary to this narrative cannot be negated. It is equally true that Karnan’s repeated allegations were met with a repeated denial of investigation. From the Supreme Court’s own account of this case, it is clearly noticeable that before Karnan went public with his allegations, he addressed several communications to functionaries of the Madras High Court in this regard.

This lack of investigation is also borne out by Justice J Chelameswar’s separate order in this case where he observes that “in spite of the repeated episodes of the accusations by the contemnor, no authority under the Constitution of India competent to examine the allegations ever thought it necessary to act upon the contemnor’s accusations”. Chelameswar was a part of the Supreme Court bench that convicted Karnan.

Aspersions have previously been cast on the integrity of judges of the higher judiciary by retired Supreme Court judges and senior advocates. Last year, former Arunachal Pradesh Chief Minister Kalikho Pul made specific allegations of corruption against judges of the higher judiciary in his suicide note. (Pul had come to power by bringing down the Congress government in the state through defections but committed suicide in August after the Supreme Court reinstated the previous regime.)

And the prevalence of caste bias in the judiciary ought not to surprise anyone but the most simple minded. Ongoing proceedings against Justice Nagarjuna Reddy of the Andhra Pradesh High Court, accused of making caste slurs and death threats against a Dalit judge, are a stark reminder of this fact.

In short, despite the Supreme Court’s perception of the frivolity of Karnan’s allegations, this was an opportune moment for the court to confront these allegations with a systematic investigation. Since the 1990s, the supreme courts of several American states have conducted inquiries about the prevalence of racial discrimination in their courts – a process that has strengthened their institutions. By contrast, the Supreme Court of India continues to appear in obstinate denial about corruption or casteism in the higher judiciary.

In its handling of Karnan’s case, the Supreme Court has thus emerged as an imperious body unwilling to be bound by procedure, or to undertake the tedious tasks necessary to help the institution grow. In its desire to prove itself equal in every way to Karnan, unfortunately, the Supreme Court has ended up doing just that.